What Do You Know about the State of Public Defense in the State of Michigan?

Did you know that public defenders in Oakland County did not receive a raise for 8 years?! And that this year, 2008, they barely managed to get 1%? And that was at a time when the judges and prosecutors, the other two legs of an affective legal system, got regular raises. The 5th Amendment of the U.S. Constitution says “No person . . . shall be deprived of life, liberty, or property, without due process of law;” And the 6th says “In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” This assumes that such counsel is up to the job or at least on a somewhat equal footing with the prosecutor or it is all a sham.

And, as we know, you get what you pay for! Even those who are conscientious lawyers, who are willing to take the financial hit, have to take on too many cases just to make ends meet, and they become much less ineffective. They face prosecuting attorneys who are salaried and who have expense accounts for whatever resources required to win their case. The paradigm of an adversarial system might work as intended, if there was a level playing field.

While writing this, the National Legal Aid and Defender Association, in partnership with the State Bar of Michigan, and on behalf of the Michigan Legislature released a scathing report grading Michigan against The 11 Principles of A Public Defense Delivery System. (The first 10 points originated with the American Bar Association and the 11th was added by the Michigan Bar.) Few states have made any serious attempt to abide by the 11 Principles and Michigan ranks 44th out of the 50 States in money used in support of indigent defense, spending just $7.35 per indigent case, 38% below the national average, which also should be much higher. I’ll cover the principles (in italics). Rather than judge a system by the criticisms of outsiders, this is a statement by the judges and lawyers within Michigan of how they believe a just and non-partial system would work when it comes to the indigent.

1. INDEPENDENCE: The public defense function, including the selection, funding, and payment of defense counsel, is independent. But in Michigan the presiding judge hand selects the defense counsel. In effect, they are hired (and rather badly paid) by the judge. How can they be independent, when they know that if they offend the judge in any way that they may never receive another appointment from that judge again? When the judge picks the defense counsel, the human response of 'not biting the hand that feeds you' cannot be dismissed.

2. STRUCTURAL INTEGRITY: Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar. In a system where all the members of the local Bar are rotated, there can be a manageable case load with a relatively equal quality. Michigan has no such system. The average public defender has 7 times the number of cases as the average prosecutor!

3. ELIGIBILITY: Clients are screened for eligibility, and defense counsel is assigned and notified of appointment, as soon as feasible after a client’s arrest, detention, or request for counsel. Ken Wyniemko, an adviser to Proving Innocence, faced a rape conviction. The trouble was that his court appointed attorney wouldn’t talk to him! And when he asked for a new attorney, the judge got so angry that he gave him one, which Ken met for the first time on Friday afternoon, with jury selection taking place Monday morning! Opening arguments began Monday afternoon! The prosecution had 9 months to prepare their case.

4. Defense counsel is provided sufficient time and a confidential space with which to meet with the client. There are very few courts in Michigan that even approach this.

A couple weeks ago, sitting in Oakland County Circuit Court for about an hour and a half, I heard at least three times, if not four, “I’m sorry, your Honor. I can’t answer that question. I have not had an opportunity to confer with my client.”!!! Yes, you read that correctly. Public defenders routinely go into court having had a 5 minute discussion just before the hearing starts, and sometimes they haven’t even met with their client! You see, public defenders in most courts are not assigned to individual cases. Instead, they are assigned to a morning or an afternoon or a whole day. They don’t know which cases they will have until they arrive at court, at which time they may be presented with any number of cases on the docket.

Of course, those are the less serious cases. In murder cases, a public defender is assigned to the case. One of PI’s advisors, Ken Wyniemko, charged with murder, had his attorney assigned to him on a Friday afternoon. Jury selection took place Monday morning and opening statements were given Monday afternoon. The prosecution had 9 months to prepare its case while Kenny sat in jail.

The “confidential space” that most public defenders have is the end of a hallway where they think they cannot be overheard. In the county courthouse of Oakland County, prosecutors have offices covering an entire floor and have access to the judges’ private halls. Public defenders do not have a single room set aside where they can meet confidentially with their clients and have no access to the judges’ private halls. (Prosecutors even have pass-cards, allowing them to enter the building without going through security. Public defenders do not.)

5. Defense counsel’s workload is controlled to permit the rendering of quality representation. As with many of these principles, they are no more than common sense. If a public defender takes on more cases than he/she can handle, the quality will go down proportionately as the caseload goes up. The average public defender has on his/her plate about seven times the number of cases a prosecutor will handle. Who is going to do the better job? There are some progressive districts in Michigan that do limit the caseload and once the limit is reached, additional cases go to another lawyer. The problem is that many public defenders also have a private practice, since it is difficult to live on a public defender’s pay. The courts rarely take the lawyer’s private practice into consideration when considering maximum workload. This is not meant as a criticism of public defenders, but having sworn an oath to give the best possible defense to one’s clients, human nature often determines where the focus is. It’s where the bread and butter comes from.

I’m sorry to say, the contrast of the ideal as stated by the Michigan Bar and reality is nothing short of laughable, if it were not so serious.